United States v. Acosta

United States District Court, N.D. Georgia, Rome Division

January 5, 2018

UNITED STATES OF AMERICA,v.BRIAN HERNANDEZ ACOSTA, Defendant.

ORDER

ORDER
This case is before the Court on the Motion to Suppress
Evidence filed by Defendant Brian Hernandez Acosta
("Defendant") [50], on Defendant's Motion to
Suppress Statements [51], and on the Non-Final Report and
Recommendation of United States Magistrate Judge Walter E.
Johnson [138].

I.
standard of Review

28
U.S.C. § 636(b)(1) requires that in reviewing a
magistrate judge's report and recommendation, the
district court "shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made." 28
U.S.C. § 636(b)(1). The Court therefore must conduct a
de novo review if a party files "a proper, specific
objection" to a factual finding contained in the report
and recommendation. Macort v. Prem, Inc., 208
Fed.Appx. 781, 784 (11th Cir. 2006); Jeffrey S. by Ernest
S. v. State Bd. of Educ, 896 F.2d 507, 513 (11th Cir.
1990); United States v. Gaddy, 894 F.2d 1307, 1315
(11th Cir. 1990); LoConte v. Dugger,847 F.2d 745,
750 (11th Cir. 1988). If no party files a timely objection to
a factual finding in the report and recommendation, the Court
reviews that finding for clear error. Macort, 208
Fed.Appx. at 784. Legal conclusions, of course, are subject
to de novo review even if no party specifically objects.
United States v. Keel, 164 Fed.Appx. 958, 961 (11th
Cir. 2006); United States v. Warren, 687 F.2d 347,
347 (11th Cir. 1982).

II.
Background

A.
Procedural Background

On
April 11, 2017, a federal grand jury sitting in the Northern
District of Georgia returned an indictment against Defendant
and two co-defendants, Nilageo Alvarez Acosta
("Defendant Alvarez Acosta"), and Jaime Adam Riano
("Mr. Riano"). (Indictment (Docket Entry No. 1).)
Count one of the indictment charged Defendant and his
co-defendants with conspiracy to commit sex trafficking of a
minor, in violation of 18 U.S.C. § 1594(c).
(Id. at 1-8.) Counts two, four, and five charged
Defendant with sex trafficking of various minors, in
violation of 18 U.S.C. § 1591. (Id. at 8-11.)
Counts six and eight charged Defendant and his co-defendants
with sex trafficking of minors, in violation of 18 U.S.C.
§ 1591. (Id.; at 11, 12-13.) Count three
charged Defendant with transportation of a minor for
prostitution, in violation of 18 U.S.C. § 2423(a).
(Id. at 9.) Count seven charged Defendant and
Defendant Alvarez Acosta with transportation of a minor for
prosecution, in violation of 18 U.S.C. § 2423(a).
(Id. at 12.) The indictment also contained a
forfeiture provision. (Id. at 13-15.)

On
December 5, 2017, the grand jury issued a First Superseding
Indictment against Defendant and his co-defendants, adding
two defendants, Anthony Joseph Lawhon ("Defendant
Lawhon") and Brandi Rice Stumpe ("Defendant
Stumpe"), dropping Mr. Riano as a defendant, and
bringing more charges. (First Superseding Indictment (Docket
Entry No. 102).) Count one of the First Superseding
Indictment charged Defendant and his co-defendants with
conspiracy to commit sex trafficking of a minor, in violation
of 18 U.S.C. § 1594(c). (Id. at 1-9.) Counts
two, four, and five charged Defendant with sex trafficking by
force, fraud, and coercion and sex trafficking of a minor, in
violation of 18 U.S.C. § 1591. (Id. at 10-13.)
Counts six, eight, and nine charged Defendant and his
co-defendants with sex trafficking by force, fraud, and
coercion and sex trafficking of a minor, in violation of 18
U.S.C. § 1591. (Id. at 13-16.) Count three
charged Defendant with transportation of a minor for
prostitution, in violation of 18 U.S.C. § 2423(a).
(Id. at 11.) Count seven charged Defendant and
Defendant Alvarez Acosta with transportation of a minor for
prosecution, in violation of 18 U.S.C. § 2423(a).
(Id. at 14.) Count ten charged Defendant and
Defendant Lawhon with production of child pornography, in
violation of 18 U.S.C. § 2251(a). (Id. at 17.)
Count eleven charged Defendant with possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).
(Id. at 17-18.) Count twelve charged Defendant with
engaging in a child exploitation enterprise, in violation of
18 U.S.C. § 2252A(g). (Id. at 18-19.) Count
thirteen charged Defendant with obstructing enforcement of 18
U.S.C. § 1591, in violation of 18 U.S.C. § 1591(d).
(Id. at 19-20.) Count fifteen charged Defendant,
Defendant Lawhon, and Defendant Stumpe with distributing a
controlled substance to a person under twenty-one years of
age, in violation of 21 U.S.C. § 859(a). (Id.
at 21.) The first superseding indictment also contained a
forfeiture provision. (Id. at 22-25.)

As of
the date of this Order, the Clerk's docket indicates that
Defendant has not filed Objections to the Non-Final Report
and Recommendation. (See generally Docket.) The time period
for filing Objections has expired, [1] and the Court finds that the
matter is ripe for resolution.

B.
Factual Background

On
December 19, 2016, Detective Aberhoff of the Miami Dade
Police Department contacted the Dalton Police Department
concerning A.M., a sixteen-year-old girl who had been missing
for approximately three months. (Tr. (Docket Entry No. 82) at
8, 47.)[2] Detective Aberhoff spoke with Detective
Aaron Simpson of the Dalton Police Department. (Id.
at 6-7.) Detective Simpson is also assigned to the Federal
Bureau of Investigation's ("FBI") Conasauga
Safe Streets Force. (Id.) Detective Aberhoff
conveyed to Detective Simpson that, during the course of her
search for A.M., she detected activity on Facebook by A.M.,
under an alias, and had served subpoenas on Facebook to
attempt to determine A.M.'s location. (Id. at
8-9.) A review of A.M.'s Facebook activity log showed IP
addresses associated with her Facebook page. (Id. at
9.) A review of the IP addresses pointed to a cell phone
registered to T-Mobile, which detectives then subpoenaed.
(Id.) A review of T-Mobile's subpoena responses
indicated that Defendant was the account holder for the
device that A.M. had used to log into Facebook. (Id.
at 9, 77.)

Detective
Aberhoff gave Detective Simpson the address linked to
Defendant's T-Mobile account in Dalton, as well as two
other Dalton-area addresses, and asked him to check the
addresses to see if he could locate A.M. (Tr. at
9-10.)[3]Detective Simpson looked up Defendant in
the Dalton Police Department's report system to
corroborate the addresses, examined Defendant's Facebook
page to identify him, obtained a copy of Defendant's
driver's license, and obtained a photograph of A.M. from
Detective Aberhoff. (Id. at 10.)

Detective
Simpson, accompanied by Detective Tucker, first traveled to
2410 Scott Drive, and arrived there at approximately 2:00
p.m. (Tr. at 10.) The detectives encountered a woman in a
basement-type apartment, and they showed her a picture of
Defendant. (Id. at 11.) The woman recognized
Defendant, but reported that Defendant was not there and did
not live there. (Id.)

The
detectives then traveled to 496 Horsehoe Way, which was an
apartment complex called Dawnville Meadows. (Tr. at 11.) The
detectives made contact with the apartment complex manager,
who confirmed that Defendant lived there in unit J-204 and
described his vehicle. (Id. at 11, 64.) The
detectives also showed A.M.'s photograph to a maintenance
worker for the complex, who remembered that he had seen her
crying behind a dumpster near Defendant's apartment only
a couple of weeks earlier. (Id.) No one answered
when the detectives knocked on the door of unit J-204.
(Id. at 12.)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;While
at the complex, Defendant Simpson received a telephone call
from another Dalton Police Department detective, who stated
that Defendant had called the police department wanting to
know why the police were looking for him. (Tr. at 12.)
Detective Simpson asked the other detective to obtain contact
information for Defendant and said that Detective Simpson
would call him back. (Id.) When Detective Simpson
returned to the station, he found a note from the other
detective listing three callback telephone numbers ...

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